Assessing the Counter-Revolution

Recent comments by White House Press Secretary Sean Spicer and Attorney General Jeff Sessions have suggested the federal government may indeed attempt to rein in or roll back state-level legalization of marijuana.

Colorado Governor John Hickenlooper, though, remains defiant, telling Chuck Todd on NBC’s Meet the Press: “It’s in our constitution. I took a solemn oath to support our constitution…The states have a sovereignty just like the Indian tribes have a sovereignty, and just like the federal government does.”

As discussed by Jacob Sullum at Reason.com, Hickenlooper does not think that the federal government can stop Colorado’s legalization. Sullum argues that the problems associated with legalization have been “exaggerated” by “prohibitionists . . . feeding [Trump] information” and furthermore that “the federalist approach Trump has said he favors allows a process of trial and error from which other states can learn.”

There is more going on here, though, than meets the eye. As is so often the case, rhetoric about marijuana is not about actual policy but instead about perceptions.

Seriously, does anyone, anyone, really believe that law enforcement will remove marijuana from American society?

The idea that prohibition means that marijuana will not be available or popular in this country runs afoul of all available evidence. Over the last few decades, more and more states and localities have opted out of federal marijuana prohibition by way of decriminalization, medical marijuana laws and outright legalization. The historical trend is strong, clear and persuasive.

Do prohibition supporters really think they can undo these changes?

No, instead, the objectives of prohibition supporters have always been focused on messaging.

The goals of the anti-marijuana movement have been to send a message that marijuana is harmful and that to send such a message, marijuana possession and sales must be illegal. Part and parcel of this approach is that any talk of reform helps reduce perceptions that marijuana is harmful and that the artificially increasing risk perception is essential to discouraging use.

Other recent remarks by Sessions provide context for these hints of a crackdown on legalized marijuana.

As reported by the Washington Post, Jeff Sessions tied a recent increase in violent crime to a lack of respect for police officers, vowing that his Justice Department would be more supportive of local departments and “not diminish their effectiveness.”

In other words, Session believes that public scrutiny undermines respect for police and makes their job more difficult. These remarks were directed to the subject of the use of deadly force by police and that increased scrutiny of the police in this area has made police less aggressive and less successful in responding to violent crime.

However, the same line of reasoning that has often been applied to marijuana is being applied to the use of deadly force. The suggestion here is that even if the policy is wrong, questioning it makes things worse.

Increasing support for reform of the nation’s marijuana laws is based on an implicit rejection of this line of thought, that right or wrong police policies are above reproach.

A counter-revolution to scale back or undo state-level marijuana legalization based on this sort of approach is doomed to failure, not only because it has failed in the past but also because the opposition to such a roll-back now has the support of more formidable stake-holders.

The will of the voters, as well as state constitutional provisions, are held in higher regard than the opinions of public officials. Law enforcement officers, legislators and for that matter the attorney general of the United States are all deserving of respect. Yes, they are.

But they are also subject to criticism. More importantly, by the same set of values, the voters of sovereign states are also deserving of respect. They are also subject to criticism, but under the laws and customs of the United States, the decisions of voters and the constitutions of their states are also subject to greater deference than public officials.

Now, a serious discussion about this issue must take note of the supremacy clause of the U.S. Constitution.

However, the federal government cannot force state governments to enforce federal laws. If Colorado does not want to arrest people for marijuana-related offenses, there is little the federal government can do about it.

Supporters of prohibition know this. Jeff Sessions know this.

The counter-revolution has a lot more to do with creating the appearance of support for the law enforcement community and their unease about legalization than has to do with changing state laws.